CASE 68: A Dowry Allowance to the Wife

D. 24.1.15 (Ulpianus libro trigesimo secundo ad Sabinum)

(pr.) Ex annuo vel menstruo, quod uxori maritus praestat, tunc quod superest re­vocabitur, si satis immodicum est, id est supra vires dotis.

(Ulpian in the thirty-second book on Sabinus)

(pr.) From an annual or monthly sum provided by the husband to the wife, any surplus will be revoked if its amount is inordinate, that is, beyond the dowry’s ca­pacity. (1) If the husband gives money to his wife and she receives interest on this money gift, she will be enriched. So Julian writes with regard to a husband, in the eighteenth book of his Digests.

1.      Maintenance and the Dowry. As Case 35 shows, the jurists often associate the dowry with “the burdens of matrimony,” including maintenance of the wife. However, this association is informal and not legally mandated (see Case 60). The husband was not required to use any of the proceeds of the dowry for this purpose, nor was the amount of the dowry tied to the level of the wife's maintenance. In this Case, the husband has voluntarily given his wife an allowance out of which she was evidently to pay at least her own ex­penses; and, as it seems, the allowance was fairly loosely coordinated with in­come from the dowry. Paul (D. 23.3.73.1) indicates that it would also be ac­ceptable if during marriage he restored to her the entire dowry so that she could maintain herself and her slaves—so long as she was the thrifty type! In some cases, a husband apparently supported his wife without drawing on the dowry income at all. Papinian (D.

2.      Another Allowance. Something of the complexity of these arrangements can be gleaned from Julian (D. 23.4.22): “A man received a farm as dowry from his wife and they agreed that he would give her the rent from this farm as an annual payment. He then leased the cultivation of this farm to his wife's mother for a fixed rent. She died still owing the farm's rent, but left her daugh­ter as her sole heir. The couple divorced, and the husband then claimed from his wife the rent her mother had owed.” Will he win his lawsuit? The answer may depend on whether the annual payment should be regarded as a gift to her. If so, the gift is void and so he can claim the unpaid rent from his ex-wife; but if not (presumably because the money was intended for her mainte­nance), the rent and maintenance payments should offset each another.

3. Can a Wife Give Her Husband an Allowance? This is held to be an improper gift and, furthermore, “inconsistent with and contrary to the nature of her sex” (Ulpian, D. 24.1.33.1). Why this sudden outburst of sexism? Was Ulpian a misogynist?